Mary Hills' Summon and Class-Action Complaint

Case: 3:19-cv-00907-wmc Document #: 1-3 Filed: 11/04/19 Page 1 of 67

Case 2019CV000110 Document 3 Filed 09-18-2019 Page 1 of 46
FILED
2017 WI 0\ ~·2019
Washburn County
SUPREME COURT OF WISCONSIN Clerk of Circuit Court

2019CV000110
CASE No . : 2014AP2236
COMPLETE T ITLE : Caro l yn Moya,
Plaint i ff - Respondent- Petitioner,
v.
Aurora Hea l thca r e, I nc . and Healthport
Technologies , LLC ,
Defendants-Appel l ants.
REV I EW OF A DECISION OF THE COU RT OF APPEALS

366 Wis . 2d 541, 874 N.W. 2d 336
(2016 WI App 5 - Pub lis hed)
OPINION F ILED : May 4 , 2017

SUBMITTED ON BRIEFS :
ORAL ARGUMENT : October 20, 2016
SOURCE OF APPEAL ;
COURT : Ci rcu it
COUNTY : Milwaukee
JUDGE : Kar en E. Christenson
JUST I CES :
CONCURRED:
D I SSENTED : ZIEGLER , J. dissents ( op i nion f i led) .

NoT PARTI CIPATI NG : BRADLEY , R. G. , J . a nd KELLY , J. did not
part ici pa t e .
ATTORNEYS:
For the plai ntiff - r esponden t-peti tioners, t here was a brie f
by Robert J. Welcenbach and Welcenbach Law Offices , S . C.,
Milwaukee, and oral a r gument by Robert J. Welcenbach .
For the d efendants - appellant s, there was a brief by John

Franke , Dani el A. Manna and Gass, Weber and Mullins, LLC,
Mil waukee, and oral a r g ument by John Franke .
EXHIBIT
Case 2019CVOOO 110 Document 3 Filed 09-18-2019 Page 2 of 46
2017 WI 45
NOT ICE
This opini on is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports .
No . 2 0 14AP2236
(L. C. No . 13-CV-2642)
STATE OF WISCONSIN IN SUPREME COURT
Carolyn Moya,
Plaintiff-Respondent- Petitioner,
v.
FILED
Aurora Healthcare, Inc . and Healthport MAY 4, 2017

Technologies, LLC,
Di ane M. Frerngen
Clerk of Supr eme Court
Defendants-Appellants.
REVIEW of a d ecision of t h e Cour t of Appea l s. Reversed and

remand ed fo r fu rther p roceedings .
'Il MI CHAEL J. GABLEMAN , J . This is a review of a
published d ecision of t he cou rt of appeals that reversed the
Mi l waukee Co u nt y c i rcui t court' s 1 d enial of Aurora Healthcare,
Inc . and Heal t hport Technol ogi es, LLC ' s (collectively referr ed
to as " He al t hport " ) motion for summar y judgme n t and r emanded the
case with di r ect i ons to grant Hea l thport ' s mot i on for summary
1
The Honora ble Karen E . Chri s tens o n p r e siding .
No. 2014AP2236
judgment . Moya v . Aurora He althcare , Inc . , 2016 WI App 5 , 366
Wis . 2d 5 41, 87 4 N. W.2d 336.

<[ 2 Today , we are asked t o i nt erpret the me aning o f the
phr ase " p erson authori zed by t he patient " in Wis . St at .

2
§ 1 46.83(3 f )(b)4 .-5. (201 3-1 4) , which exempt s a "pati ent o r a
person authori zed by t he patient" f r om paying ce rt ifica tion
charges and r e t rieval fees for obtaining cop i es of the pat i e nt ' s
h ealth car e r ecords . More particu larly, we are asked to
determine whe t her an at t orney wh ose client authorized him v i a a
HIPAA 3 r elease form to obtain her h e alth car e re cords may benefit
fr om this f ee e x e mption . Because the phras e "person autho rized
by t he patien t" is defined in Wis. Sta t . § 14 6. 81 ( 5) to i nclude
" any person aut hori zed in writ ing by the pati ent ," we h old tha t
an a t tor ney autho ri zed by h is or her c l ient i n wri t i ng v ia a

HIPAA release f or m t o obtai n the client's health care r ecords is
a "p ers on authori zed by t he pat i ent" under Wi s. Stat.
§ 1 4 6 . 83 ( 3f) (b) 4 . -5. and i s the r e fore exemp t f rom ce rt if i ca t i on
charges and ret r ieva l f ees unde r t hese subdivisions .

Consequ ently , t he dec i s i on of the court of a ppeals is r ever sed,
and the case i s remanded for f ur ther proceedings cons is t ent with
this opinion .
2
Al l subseque nt references t o the Wis consin St atutes are to
t he 20 13- 1 4 version u nl e ss otherwi se indicated .
3
HIPAA s tands f or He a lth I nsurance Por tab i l ity and
Accountabili t y Act . A HI PAA r elease f o rm is a type of form
whe r ein a patie n t consents to t he release of his or her he al th
care i nformation t o a t h ird part y.
2
No. 2014AP2236
'3[3 We beg i n with a brie f f actua l background and

descri pt i on of the p r ocedur a l h i stor y . We then s et forth the
standard of review and the relevant rul es for s t a t utor y
i nterpretation. We t hen conclude that Car olyn Moya ' s ( "Moya " )
at t or ney is a "per son aut horiz e d by the patient " under Wis.
St at. § 14 6 . 83(3f) (b)4 . -5 . and is t herefore exempt from t he

ce r t i f i cat ion charge and retrieval fee a uthor i zed by that
statute . Next , we address Healthport ' s arguments that the
doc t rines of voluntary payment and waiver bar Moya ' s claim.
I . FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The St atutes Gove r ning Access to Health Ca r e Reco r ds
'314 Access to pat i ent health car e r ecords is gove r ned by

Wis. Stat . § 146.83. Under subsec . ( 3 f ), a heal th ca r e provi der
shall , subject to exceptions that are inapplicabl e here, p r ovi de
copies o f a pat i ent ' s h eal t h car e records " i f a per son requests
cop i es of a pa t ient ' s heal th care recor ds , provides i n f ormed

consent , and pays the app l icabl e fees under par . (b ) ."
§ 1 46. 83 (3f) (a) .
'IS Pu rsuant to para . (b) , health care provi der s may

i mpose cer ta i n cos t s on the pe r son r eques t ing heal t h care
recor ds under par a . {a)
(b) Except as provi ded in s ub. (lf) , a heal t h

care provider may c harge no more t han t he total of a ll
of the fo ll owing t hat apply for p r ovi ding t he copi es
reques t ed unde r par. (a) :
1 . For p a per copies: $1 per page for the first

25 pages; 75 cent s per page f or pages 26 to 50 ; 50
cents per page fo r pages 51 to 100 ; and 30 cent s per
page f or pages 101 and above .
3
Case 2019CV000110 Document 3 Fried 09-18-2019 Page 5 of 46
No . 2014AP2236
2. For microfi c he or microfilm copi es , $1 . 50 p er

page .
3 . For a print of an X-ray , $10 per i mage .
4. If t he r equester is not the pa t ient o r a

person a uthorized by the p a t i ent , for cer t i fica t ion of
cop ies , a single $8 charge.
5 . If t he requester is not the pa tient o r a

person auth orized by the p atient , a si ng le re tri eval
f ee of $20 fo r all copies requ es t ed .
6. Actua l shipping costs and any applicable

taxes .
Wi s . Stat . § 146 . 83(3f) (b) (emp ha sis added) . According to subd .
4. a nd subd . 5., the pat i ent and a person a uthori zed by the
patient a r e exempt fr om t h e certi fica tion charge and r etri eval
fee. This s t atut e , t hou gh , does not provi de a de fini t ion for a
" person authorized by the p a ti ent ."
<f[6 I ns t ead , a " pe r son aut horiz ed by the pati e n t " is

de fi ned in Wi s . Stat . § 14 6.81(5) as
t he pa r ent , gu a r d ian , or legal c u stodi an of a minor

pat ient , as defi n e d i n s. 48 . 02 (8) and (11), t h e
person ves ted with supe r vis i on of t he chi l d under s .
938 . 183 or 938.34 ( 4d) , (4h) , (4m) , or ( 4n ) , the
guardian o f a pa t ient ad j udicated incompetent in thi s
s t ate , the person r epresentat ive , spouse , or domesti c
partne r u nder ch. 770 of a dece as ed patient , any
person author ized i n wr i t i ng by t h e patient or a
h ealth c a re agent d esignated by t he patient as a
prin c i pal under ch. 1 55 i f the patient has been found
to b e incapacitat ed under s . 155 . 05 (2) , except as
limited by the power of attorney for h ealth car e
i ns trument . I f no spouse or domestic partner s urvive s
a decea sed p a t i ent , "person authorized by the pat i e nt "
a l so means an a d u lt member of the d eceased patien t's
immediat e famil y , as defined in s . 632 . 895 ( 1) (d) . A
cou rt may appoint a t emporary guardian for a patie nt
bel i eve d incompetent to consent to t he rel ease o f
records under t his section as the person authorized by
4
No. 2014AP2236
the pat i ent to decide upon t h e release of records , if

no guardian h as been appointed f or the patient.
(Emphasis added) . Because this def i nition uses t he disjunc t ive
"or ," see Hull v. Stat e Farm Mut . Au to. Ins. , 222 Wis. 2d 62 7 ,
638 , 586 N.W.2d 863 (1998) ( "' [O ] r ' s h ould be interpreted
dis j unctively. " ) , in order to be a person a uthori zed by the
pati ent under Wi s . Stat. § 1 46.83(3f) (b)4.-5., and therefore
enjoy exe mption from the certification charge and ret r i eval fee ,
a p erson must fa l l i nto only one of the above categories of

per sons. One of the c a tegories in the above de finition is " any
person authori zed i n writing by the pat i ent," and it is this
category on which Moya relies i n arguing tha t her attorney is a
" person authori zed by the pat i ent" under§ 146 .83(3f) (b)4.-5.
B. Moya ' s Cl ass Action Lawsui t
~7 Th is cas e comes to us by way of a class acti on lawsu i t
f i led by Moya on beha l f of not only hers elf but all o t her
s i milarly s i tuated persons who have been billed t he
certifi cation charge and re t r i eval fee by Hea lthport for
obtaining their own h ealthcare r ecords. The class action a r ose
f r om Moya ' s personal injur y claim4 in which Moya hired We l cenbach
Law Offices , S.C. to represent her and the law f i rm had to pay
the certification char ge and retrieva l fee , despite the fact

t hat Moya had a uthori zed the l aw f i r m in writing t o obtain t h ose
records.
4
Moya ' s personal i njur y claim arose f r om a car acc ident i n
20 11 from which she sustained injuri es. This claim has since
been settled.
5
No. 2014AP2236
'1[8 Moya authori zed her attorney , Robert We l cenbach, to

ob tain her heal t h care records by signing HI PAA release forms
giv ing to We lcenbach Law Offices , s.c. "authoriz [ation ] to
r eceive [he r ] health informa tion."
'1!9 Atty. Welcenbach subsequently submitted re que sts for

Moya's health car e records, 5 and Healthport, when fulfilling the
reques t s , imposed certification charges and retrieval f ees
pursuant to Wis . Stat. § 1 4 6 . 83(3f) (b)4 .-5 . At t y . Welcenbach
paid the certification char ges and retrieval f ees and passed t he
associated costs to Moya by deducting the costs from the
se t tlement proceeds resulting from her pers ona l inj ury claim. 6
<J[ lO At the t i me Heal thpor t invoiced Atty. Welce nbach , he
paid t he costs, and he did no t specifical l y dispute them .
However , he had on mu ltip le p r evious occasions disputed the

i mposition of such costs in other cases.
5
At ty . We l cenbach s ubmitted his request to Moya ' s health
care provide r, Aurora Hea lthcare , Inc. ( "Aurora " ) , but Aurora
and Healthport have an agreement whereby Healthport handles
Aur ora ' s health care records requests.
6
The total deducted fr om Moya' s se t tlement proceeds for
these costs was $294.70 .
Contrary to the assertion made by the dissent , t he fact

that At ty . We l cenbach passed these costs along to Moya was no t a
facto r in arriving at our conclusion that Atty. Welcenbach is a
person authorized by the patient for p urposes of Wis. Stat.
§ 146. 83(3f) (b) 4 .-5. See diss ent , '1!62 n.3. Our determination
that Atty . We lcenbach is a person so authorized is derived from
our applicat i on of the plain language of t h e statute and nothing
more.
6
Case 20 19CVOOO 110 Document J Filed 09-18-2019 Page 8 of 46
No. 2014AP2236
111 In response to Healthport 's imposit i on of the
certifica tion charges and retrieval fees , Moya f i l ed this c l ass
a ction l awsuit . She argues that Heal thport v i olated Wis . Sta t.
§ 1 46.83(3f) (b)4 .-5. when it imposed the certificati on charges
and r etrieval fees because her attorney i s a " pe r son authorized
by the pat i ent ," thereby exempting her attorney f rom paying t he
certification charges and retri eval fees.
1 12 Healthport moved to dismiss Maya's comp l aint for
fa i lure to state a claim, and the circu i t court7 denied
Heal thport ' s mot i on . Healthport fil ed an answer , and the
part ie s underwent limited discove ry. After the limited
d i scovery, Heal thport filed a motion for summa ry judgment asking
t he c i rcuit court t o dismiss Moya ' s cla i m with prejudic e. The

8
circuit cour t denied Healthport ' s motion. Healthport filed a
9
motion for reconsideration , and t he circuit court again denied
Healthport ' s motion .
113 Healthpor t f iled an i nterlocut ory appeal , and the
court of appeals reversed the circu it cou rt ' s denial of
Heal t hport' s motion for summar y judgment and remanded the case
with i nstruc ti ons to grant Healthport's motion . Moya , 366
Wis . 2d 5 4 1, c_J[l. The cour t of appeals determined tha t Moya' s
attor ney was not a " person authori zed by the patient " a nd
7
The Honorable Wil liam W. Brash III pres i d ing.
8
The Honor able Karen E. Chri s tenson presiding.
9
The Honorabl e Pedr o A . Colon pres iding .
7
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No . 2014AP2236
therefore Heal t hpo rt could i mpose the ce r tification charges and
r et r ieval fees on Moya ' s a ttorne y. Id ., 'lil 6. Judge Kess l e r
d i ssented stating tha t she would uphold the c i rcu it cou rt ' s
denial of Heal thport ' s mo t i on for summary judgment and would
conclude tha t Healthport could not impose the certification
cha r ge and retri eval fee. 'li'li 28-29 (Kessler , J. ,
dissent ing).
<Jll4 Moya peti t ioned t hi s court for review, which we
g ranted i n order to de t ermine wh ether her attorney is a " person
aut h oriz ed by t he patient " and thu s exempt from paying the
certi fi cation char ge and the r etrieval fee found in Wis. Stat.
§ 1 46.83(3f) (b)4 . -5.
II . STANDARD OF REVIEW
<Jll5 " Whe t he r the circuit cour t p r operly granted summary
judgment is a question of law t hat this court reviews de novo . "
Racine Count y v. Oracular Milwau kee, I nc ., 2010 WI 25 , <JI24 , 323
Wi s . 2d 682 , 781 N. W. 2d 88 (quo t ing Hocking v. City of
Dodgevi lle , 2009 WI 70 , ':[7 , 318 Wi s. 2d 68 1, 768 N . W.2d 552) .
Summary judgment must be gra nted " if the p l ead i ngs, depositions ,
answers to interr oga t ories , and admissions on file, together
with t he a f fidavits, i f any , show that there i s no genuine i ssue
as to any mate r ia l fact and t h at the moving party is entit l ed to
a judgment as a matter of l aw. " Wis . Stat. § 802 . 08(2) . In
ma king this dete r mination , this cou rt applies a two-step test .
Green Spr i ng Fa rms v. Kers t en , 136 Wis. 2d 304, 3 1 4 -1 5 , 401
N . W.2d 816 (1987). Under the f i r st s t ep , this court as k s i f the
pla i n t i f f stated a c l aim for relief. Id . at 3 15 . Under the
8
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No . 2014AP2236
second step, this cour t a pplies the summary j u dgment statute and
asks if any factual issues exist that precl ude summary judgment .
I d.
'1l l 6 "We r eview questions of statutory interpretation and
app l ication independently , but benefiting from the discussions
of the circuit court and the court of appea l s." State v.
Grunke, 2008 WI 82, '1l l 0, 311 Wis. 2d 439, 75 2 N.W.2d 769.
II I . DISCUSSION
A. The Rule s of Statutor y Interpretat ion
'1117 "[ T ] he pur pose of statutory interpreta t ion is to
determine what the statute means so that it may be given i ts
full , proper, and intended effect ." St a t e ex rel. Kalal v.
Circuit Cou rt for Dane Ct y ., 2004 WI 58 , 'lI44, 271 Wis. 2d 633 ,
68 1 N. W. 2d 1 1 0. Statutory interpretat ion begins with the text
of the s t atute. Id., '11 45 (qu o ting Se i der v. O'Connell, 2000 WI
76, '11 4 3, 236 Wis . 2d 211 , 612 N.W. 2d 659). If the tex t of the
statut e is plain and unambiguous, our inqui r y s t ops t here. Id .
(quoting Seider, 236 Wis . 2d 2 11 , '1l 43) .
'1l 1 8 If the text is ambiguous , we mus t look beyond the t ext
t o o t h er , ex trinsic sources of information , such as l egis lat i ve
h i story, to i n t erpr e t the stat ute . I d. , '1146. "[ A] statute i s
ambiguous if it is capable of being u nderstood by r e asonab ly
well-informed persons in two or more sense s. " Id ., '1I47. Even
without ambiguity, though , we may consu lt extrins i c sources to
confirm our understanding of the p lain language of a statute .
I d., '1I5 1 .
9
No . 20 1 4AP2236
'1[19 "S tatutory language i s given its common, ordinar y , and

accepted meaning, except that technical or special ly-defined
words or p h rases are given t hei r t echni ca l or special
definitional meaning. " I d ., c_n:45. We also look to the context :
" [S J tatut ory l angu age is interpreted in the contex t in which it

is used ; not in i sol ation but as part of a whole ; in relat i on t o
t he language of surrounding or close l y-related s t a tutes ; and
reasonably , t o avoid absurd or unreasonabl e results ." Id ., CJI4 6 .
B. Interpretat ion of " Any Person Authorized in Writing by the
Patient "
'1[2 0 Moya argues that " any person auth orized i n wri t i ng b y
the pa t ient " in Wi s . Stat. § 1 4 6. 81 ( 5 ) is " defin ed broadly by
the l egis lature " and that t he plain me an i ng o f the statutory

language r equ ires nothing mor e t han a person and a wr it t en
authorization from the patient . Thus , Moya ' s attorney qualifies
as a " person aut horized in writing by the pat i e nt" s i mpl y
because h e is a person and has a written authorizat i on from Moya
in t he nature of the HI PAA r elease form. Heal thport, on the

other hand , argues tha t the context of § 14 6. 81 (5 ) i ndicates
that the person auth orized in writing by the patient mu st (in
addition to having authorizat ion to obt ain health care records)
also be authori zed to make health care decisions on behal f of

t he patient . In response to t h i s argument , Moya says Hea lthpor t
can achi eve this d efinit i on only by addi ng its own l anguage to
t he statute .
CJI21 Aft er exami ning the lang u age of the s ta tute and
applying t h e well-es t ab l ished rules of s tatutory interpretation ,
10
No . 2014AP2236
we agree with Moya . The context of the stat utory def i nition of
"person authorized by the patient" p r ovided in § 146 . 81 (5)
ind i cates that " any person authoriz ed in wri ting by the patient "
is a stand-alone category, separa te and apar t from t h e r e maining
categories, containing no l imitations beyond those e xpressly

written . We base our determinat i on in this r ega r d on the
punctu ation and conjunctions given i n the statute and see these
ca t egories as follows:
(1 ) " [T] he pare nt, gua r d ian , or l egal custodian of a minor

patient , as defined ins. 4 8.02 (8) and (11) " ;
(2) " the per son vested with supe r vision of the chi l d u nder
s . 938 . 138 or 938 .34 ( 4d), ( 4h ) , (4m) , o r (4n) ";
( 3) " the guardian of a patient adjudicated incompetent i n

thi s state";
( 4) " the pers onal representative , spouse, or domestic

partner under ch . 770 of a deceased pa ti ent";
(5) " any pe rson authorized i n wri ting by t he patient or" ;
(6) " a health care agent designa ted by the p ati ent as a
princ i pal under ch . 155 if the pa tient has been found
to be incapacitated under s. 155 . 05(2), excep t as
l i mi t e d by the power o f attorney for health car e
instrument ."
( 7) "I f no spouse or domest i c partner survives a deceased

pati ent , ' person authorized by t h e pati ent ' a l so means
an adult membe r of t h e dec eased pat i ent ' s immediate
fa mil y, as defined ins . 632.895(1)(d). "
( 8) "A court may appoint a t e mporar y guardian for a

pa t ient believed incompetent to consent to the release
of records under this section as t he person authorized
by the pati ent to deci de upon the rel ease of the
records , i f no guardian has been appoin ted fo r the
pati ent ."
Wi s. Stat . § 146 . 81(5) (emphasis added) .
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No . 2014AP2236
<][22 Thus, t he phrase " any person aut hori zed i n wri t i ng by
t he patient " must be interpre ted as its own category of persons

authori zed by the patient . The statutory l anguage is
unambiguou s in that i t re qui res only a person with a writ ten

authorizat i on from the pat i ent. Th e pla i n meaning of t he
sta t ute does not requi re that the autho r ization be an
aut hori zat i on t o make health care d ec i s i ons on behalf o f the
patient . Thus, wh en the p hrase " person authorized by the
pat i ent " is used in Wi s. Stat. § 1 46 . 83(3f) (b)4.-5. in t he
cont e x t of obtaining copies o f health care r ecords, it includes

" any person aut horized in writing by the pat i ent " to obt ain such
recor ds . The defi ni t ion requires no additional authoriz at i on
for such person to qual i fy for the exemption f r om the

c e r tification charge and retri eval fee.
123 Heal thport a r gues t hat this conclusion is inconsistent
with t he general principle t hat we int erpret an i tern in a l i s t

consistentl y wi th t he r e maining items i n the l ist. See State v .
Popenhagen, 2008 WI 55 , <][ 46 , 309 Wis. 2d 601, 749 N.W.2d 611.

Fr om this general pri nci p l e, Heal thpor t urges us to conclude
t hat " any pe r son author iz ed in wri t i ng by t he patient " must have
t he ability to make health car e decisions on the pat i ent ' s
b ehalf . Hea l thport's a r gument r uns as fol l ows: Because each o f

t he othe r catego r ies of pe r sons in the defi n i t i on of "person
authori zed by the pa tient " in Wis. Stat . § 1 46.8 1 (5) has the
author i ty to make h eal t h care decisions on behalf of the
patient , the f ift h category l isted above must h ave tha t
12
No. 2 01 4A P2236
authority as wel l in order to qual i f y as a " person authori zed by

the p a tient ."
i24 This argument is unpersu a sive in l i ght o f the r elevant
sta t u t ory context . Examini ng the various cat egories in t he
de f ini tion o f " person authorized by t he pati ent" in Wis . Stat .

§ 146 . 81 (5) demons t rate s t ha t t he l egislature d i d no t specify
t hat each must h ave t h e author it y to ma ke h ea l t h care decisions
f or t he pat i ent . Instead, the leg i slature placed var ying
parame t ers on each dist i nct catego r y. For example, in the first
cat egor y , t he legi s l ature chose to l imit it to t he parent ,

guardian , or legal c u stodian o f a minor patien t. Therefore , a
pa r ent, gu ardi an, or legal cus t odi an o f a minor i s aut oma ti call y
a "person authori zed by t he patient " whe reve r t ha t phrase

appears i n Wis . Sta t . §§ 1 46 . 8 1-. 84; noth ing e l se is necessary
to qua l i fy and no othe r l imitation is i mposed. Othe r
ca t egori es, however , are narrower. For exa mple , the eighth
category is specifical l y l imi ted to a t emporar y guardi an
appo inted by a court to " dec i d e upon t h e re l ease of r e cor ds " f or
an incomp eten t pati ent. At leas t for this c a tegory , havi ng
specifi c a uthorizati on to make hea l th ca r e dec i sions f or t he
incompete n t pa t i ent is a r equi rement.
i25 We cite t h e se instances of ci r cumscripti on withi n the

s t atute not as demonstrat ions of t h e l e gis l ature ' s collec tive
fac ili t y with language b ut, ra ther , to bolste r o ur unde rstanding

t hat , when t he legis lature chooses t o say " any per son auth or i zed
in wri t ing by the pat i e nt," we mu s t interpre t these words

without the kind of l imitati on proposed by Heal t hport . Cf.
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I ndus. to I ndu s., I nc . v. Hi ll s man Modu lar Mo l d ing , Inc . , 2002
WI 51, 'lI19 , 252 Wi s . 2d 544 , 644 N. W.2d 236 . Put s i mpl y , had
the leg i slature int ended to p l ace parameters of t he k i nd
Heal t hport s u ggests on a person authori z e d in writ ing by the
pa ti ent , " it woul d have done so ." I d. It did not , and so we do
no t . 10
'lI26 Health port a r gues t h at interpreting t he category " any
person a uthor iz ed in wri ti ng by the patient " without the
additional requirement that the aut h o riz at i on be for ma k ing
health care dec i sions creates chaos and i ncons i stency t h r ough out
the statutory scheme. Without constancy as to wha t the
author iz a t ion mus t be for , Healthport argu es that t h e defini t i on
of a "pers on authoriz e d by t h e pa t ient" would change each t i me
it is used t h roughout the s ta tu t e. However , it is enough to
r efut e this a r gument t o note t hat , contrar y to what Heal thport
argues, t he def i nit i on of a " pe r son aut hori z ed by the patient "
remains const an t t h r oughout t he statutes governing access to
h ealth care re cords . Instead of c r eating chaos, p ermi tting t he
specific natu re of t he authori zat ion al lows fo r f l ex i bil i ty. In
10
According to the dissent , such an i n terpretation i s one
done in a vacuum, not t a king into acco unt t he cont ext in which
the words are written. ~ , d i ssent, 'lI41. However,
i nterpr eting the text to also contain t he words " to consent to
the r elease of the pat ient ' s health care r ecords " ignores the
i mmediat e cont ext of t he t ext we are asked to int erpr et h e r e
becau se i t does not t a ke into account t he d i st i nction bet ween
" any person a uthor i z ed in wri ting by the patient " and the othe r
categories of persons u s e d i n the statu te.
14
No . 20 1 4AP 2 236
al l cases, we s i mply look to the written authori za t i on to
determine what the patient has aut horiz ed the pe rson to do.
'][ 2 7 Because the defi nition of " any person authoriz ed in
writ ing by the patient'' does not speci fy what t he person must be
authorized to do , the written authorizat i on necessary for an
attorney to qual i fy will depend on the function the attorney
seeks to perform. In other words , why an a t to rney might need
wri tten author iz ation may be different in different contexts .
For example , to perform t h e func tion of a " pe rson authorized by
t he pa t ient" in some cont exts , the a t torney might need
authorization to make certain decis ions on behal f of the
pa tient. See , e.g., Wis . S tat. § 14 6.82(1) (infor med consent to
release records may be given by a "person authorized by the
pat ient " ) . But in other contexts , the attorney would onl y need
authori z at i on to r eceive cop i es of heal t h care r ecor ds. That is
t he case in Wis. Stat. § 1 46.83(3f) , the statu te governing
requests for copies of such records. Regardless of the context ,
what mattered to the l egis lature i n defining " person author ized
by the pat ient " to include " any person authorized in writing by
the patient" i s that the person does h ave written authorizat ion
from the patient to pe rfo r m the relevant function.
'][28 Past iterations of t he statute support our conclus i on
that t he plai n meaning of " any person authorized in wri t i ng by
t he pat ient" is exactly what it says. See Count y of Dan e v.
LIRC , 2009 WI 9, '3[27 , 315 Wis . 2d 293 , 759 N.W.2d 571 (quoting
Richards v. Badger Mut. I ns., 2008 WI 52 , '3[22, 309 Wis. 2d 541 ,
7 49 N. W. 2d 58 1 ) ( statutory context includes past itera t ions of
15
No. 20 1 4AP22 36
the s t a t u t e). When the l e gis l atu re firs t enacted the statute in
1979 , Wis . S t a t. § 1 4 6 . 8 1 (5) defined " p er son authoriz ed b y t he
pa ti ent" as
the p arent , gua r dian o r legal custodian o f a mi n o r

pa t i ent , as de f ined in s . 48 .0 2 ( 9 ) and (11) , the
g u ardian of a pat i ent adjudged incomp e t e nt , as defined
in s. 88 0 .0 1 (3) and (4) , t h e per s ona l r e pre s entative
or spouse of a deceased p at ient or any person
author iz ed i n writing by the p a tient.
In t h is version of the stat ute , "any perso n author iz ed in
wri ting b y the pat ien t ," a s evidenced b y the use of " o r," i s t h e
last c a tegory of p e rson s considered a " person a uthori z ed by t h e
pat i ent ." We see f rom our reading o f the 1979 s t atut e that " any
p e r son aut ho riz ed in writing b y t he patient " has always been a
distinct category of persons- one wi t h out limita ti on other than
a req uireme nt of autho rization i n wri t ing from the patient .
'1129 Neverthe le s s , He al thport argues t h a t a 20 1 4 a mendment
to the s tatutes gove rning h eal t h care records , Wis . S t at.
§ 1 4 6 . 8 3 (lb) , provides context t ha t shows that the legislature
intended to e x cl u de attorney s f r om the definition of a " person
authoriz ed by the pa ti ent ." The 201 4 addi t i on o f § 146 . 83(1b)
s t a tes , " Not wi thstanding s . 146 . 81(5) , in t h is section a ' person
author ized by the p at i ent ' inclu d e s an at t orney appointed to
r epresen t the pa t ient u n der s. 977 . 08 ( 11 ] if that atto r ney h as
wri t ten infor med consent from the pa tient to v i ew and obt a in
copies of the r e cor ds. " Accordi ng to Heal t hport, the
11
Wiscons i n Stat . § 977 . 08 r elates to the appointment of a
state public d e f ender.
16
Case 2019CVOOO 110 Document 3 Filed 09-18 -2019 Page 18 of 46
No. 2014AP2236
legis l ature's us e of "[ n ] otwi thstanding" shows t hat t he

legisl atu re, in § 146.83(1b), included a cer t ain type of
atto r ney-publ i c de fende r s - as a p ers on authorized by t he
pati ent to receive h eal th ca r e records in spite of a genera l
exc l usion of attor neys from Wi s . Stat. § 146 . 81(5) .
'][30 Wh i le the legislature may have intended to expressly
include p ubl i c defenders , we decl i ne Healthpor t's implicit
invitation to add limit i ng language to Wis . Stat. § 146.8 1 (5) .
The legislature, with i ts use of " a ny person," chose not to
p lace a limit on who could be authoriz ed in writ ing by t he
patient u nder § 1 4 6 . 81 ( 5) , and we give effect to the enacted
text . See Bruno v. Mi lwaukee County , 2003 WI 28 , '][ 14 , 26 0
Wi s . 2d 633 , 660 N .W. 2d 656 ( r efusing to add additional
r equirements to the defini tion of "ret i rement " because those
addi tional requirements were not mentioned in the text ) . And
more to the point, nothing about the express inclus i on of public
defenders leads us to conclude the l egisla t ure intended to
exc lude other attorneys. 12
12
Healthport has fai led to establish that the doctr i ne of
expr essio unius est exclus i o a lterius (the expression of one
thi ng is the exclusion anot h er) applies here because nothing
indicates that t he legis lature cons ide r ed a ttorneys other than
public defenders when enacting t he language of Wis . Stat.
§ 1 46.83(lb) . See Wis . Citizens Concer ned for Cranes & Doves v.
DNR , 2004 WI 40 , <J[17 n.11 , 270 Wi s . 2d 3 1 8 , 677 N.W.2d 612
( "This r ule may be appl i ed o n ly whe r e there is some evidence
t hat the legi s l atu r e intended i t to apply. " ) .
(cont i nued)
17
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'1[31 In s um, Maya ' s attorney qua l i f ies as a "person

authorized by the pa ti ent " because he is a person , he has a
writte n aut horization from Moya via the HI PAA r elease form , and
Moya , t he patient , signed t h e HIPAA release form to provide her
a ttorney the authorization t o rece i ve her h eal th care records.

Therefore , as a person authorized by t he patient, Maya's
a tt or ney is exempt from the certification charges and retrieval
f ees Heal t hport imposed u nder Wi s. Stat . § 146.83(3 f) (b)4 .-5 .
C. The Doctrine of Voluntar y Pa yment Does Not Apply
'1!32 Healthport argues that the doctrine of vol untary

payment ba r s Moya ' s class act ion laws u it and t hereby entitles
Heal thport to s ummar y j udgment; howeve r, we conc l u de t h at t he
doc tr ine of vo l untary payment does not apply .
'Jl33 " The vol untary payment doctrine places upon a part y
who wishes to challenge t he val i dity or legality of a bill for
payment the ob l igation to ma ke the challenge either before
volunta ri ly maki ng payment , or a t the time of voluntaril y ma king
payment ." Putnam v . Time Warne r Cab l e o f Se. Wis ., Ltd . P ' ship,
2 002 WI 108 , 'J11 3, 255 Wis. 2d 447, 649 N.W.2d 626 . " [T ] he
vo l untariness in the doctr ine goes to t he wi l lingness of a
The dissent also seems to be looking for "at torneys " to be

expressly and speci fical ly listed persons author i zed by t he
patient . See , e.g., dissent, '1!42 . However, i f we are to l ook
f or such narr ow categories , who then would qualify? The answer
i s no one because n o category of persons is so spec i f ically
lis ted in the s t a t ute .
18
Case 2019CVOOO 11 0 Document 3 Filed 09-18-2019 Page 20 of 46
No . 2014AP2236
person to pay a bill without protest as to its correctness or

legality ." Id ., <[15 .
':ll34 It is axiomat i c that we g i ve effect to the

legislature ' s e x pressed i nten t when we i nterpre t s ta t u tes .
Kalal , 271 Wis. 2d 633 , <[ 4 4. Here , we de t e r mined that the
l egislature's expressed intent t hat a person with a written
authorizat i on from a p a tient does not have to pay t he
cert i fication charge or retrieval fee for obtaining health care
r ecords . Thus, " (a ] pplica t ion of the common law voluntar y
payment doctrine would undermine t he mani f est purposes of [Wis .

S t at. § 146 . 83(3f) ]. " MES-Cert i fied Pub. Accountants , LLC v.
Wis. Bell , Inc ., 2012 WI 15, <[4 , 338 Wi s. 2d 647 , 809
N.W . 2d 857 . Consequ ently, we cannot apply i t i n this case to
bar Moya ' s claim.
D. The Doctr ine of Wa i ver Does Not Apply
'][35 Healt hport also a r gues that Moya ' s class ac t ion
lawsui t is barred by the doct rine of waiver. We disagree .
<[36 " Wa i ver has been defined as a volunt ary and
int e nt ional r e linquishment of a known r i ght. " At toe v . State
Farm Mut. Auto . Ins. , 36 Wis. 2d 539 , 545, 1 53 N.W.2d 575
(1967). Waiver can be done through conduc t. Id.
<[37 Healthpor t argues t hat Moya waived he r abi l ity to
obtain her health care records a t a lower cost because she chose
to author i ze her attorney to obtain h er heal th care records
i nstead of requesting t hem herself , the reby voluntar ily and
i ntentionall y relinquishing her right not to be charged the
certification charge and retrieval fee . As with the appl i ca t ion

19
Case 2019CV000110 Document 3 Filed 09- 18-2019 Page 21 of 46
No. 2014AP2236
of the doctr ine of volunt ary payment , we decl i ne to apply the
doctri ne of waiver to subvert t he legislature ' s i nte nt. To

conclude t h at the doctrine of waiver appl ies woul d require us to
conclude that Moya's a t torney has to pa y the certification

c ha r ge and retrieva l fee. However , we conclude that Maya ' s
a ttorney does not have to pay the ce rti ficat i on charge or
r e tr i eval fee because he is a "person autho ri z e d by the

patient." Thus , the doctrine of wa i ve r does not appl y to bar
Moya ' s class action l awsu it .
IV. CONCLUS I ON
'l!38 Because the phrase "person authorized by t he pati ent "

is de f ined in Wi s. Stat . § 146.81(5) to incl ude " any pe rson
authorized in wri t i ng by the pat i ent , " we hold t hat an at t orney

aut hori zed by his or her cl i en t i n writing via a HI PAA rel ease
f orm to obtain the client ' s heal th car e r ecords i s a " pe rson
authorized by the pat i ent " under Wis . Stat . § 1 46 . 83(3f) (b)4.-5 .
and is t here f ore exempt from cert i f ication charges and re tri eval
fees under tho se subdivisions.
By the Cour t. -The decision of the court of appeals is

r eversed and t he case is r emanded for proceedings con s i s ten t
with t h is opinion.
'l!39 REBECCA GRASSL BRADLEY and DANIEL KELLY , JJ. , did not
participate.
20
No. 2014AP2236.akz
1 40 ANNETTE KINGSLAND ZI EGLER , J. (dissenting) . The

question before this court i s whe the r a personal injury attorney
who obtains his or her client ' s written consent to r eceive

cop i es of the c lient' s health care r ecords is a "person
authori zed by the pat ient " under Wis. Stat . § 146.83(3 f ) (b ) ,
such that the attorney ne e d not pay certification and re tri eval
f ees when requesting copies of t h e records from a heal th ca re

p rov i d er. The circui t court concluded that s u c h an att orney is
exempt fr om the fe es as a "person authorized by t h e pa t ient. "
The cour t of app eals in examining t he same statutor y l anguage

answered t h is question in t he negative, concluding that a
"pe r son authoriz ed b y t he patient" with in t he me a ning of Wis.
Stat. §§ 146 . 81 (5) and 146 . 83(3f) (b) is a pe r son who has " the
power t o consent to the re leas e of t he pa t ient ' s records ," not a
person who merely has the power to r eceive t hose records . Moya
v . Aurora Heal t hcare , Inc . , 20 1 6 WI App 5 , 116 , 366 Wis. 2d 541 ,
874 N.W . 2d 336 (emphasis added) . Thi s court revers e s that court
of appeals ' de terminat ion today pur por tedly because t he language
is c l ear . I write b ecause when ut i l izing traditional methods of

statutory interpre t ation , examining the text , its cont ext and
cons truc t ion, the p lain meaning demons tra t e s that "person
authori zed by the patient " has a less expansive meaning t han my
colleagues h ave adopted .
141 The court concludes that an attorney authorized by his

or her client in writing to obtain the client ' s heal th care
r ecords is a " person authorized by the patient" under Wis. Stat .

§§ 1 46 . 81( 5) and 146 . 83(3f)(b) . I n so do ing it explains tha t it
1
No . 201 4AP2236 . akz
is r el ying on t he "plain meaning " of the statute . I a cknowl e dge

that the int erpretation of t he statu tes adopted b y t h i s court i s
de f ensib l e i f one on l y l ooks a t those words i n a vacuum. The
concl u sion of t he cour t of a ppeals , however, is a lso support ed

by the t e x t . How do we know which interpretati on is cor rect?
Each interpr e t ation relies on the l anguage of the s tat ute, yet
t he court of appe al s and thi s court reach opposite conclusions.
I endeavo r to wade t hrough a more t ho r ough statutory analysis in

order to r each a conclu sion .
<][42 As a practical ma t ter , it certainl y makes sense that
t he legi s l a tu re mi ght choose t o exempt persona l i njur y at torneys

f rom the chal l e nged fees . These a t torneys act as advocates f o r
t h ei r c l ients and perhaps should be able to obtain t h e rec o r ds
without the f ee . However , these l awye r s are not listed in Wis .
Stat . § 14 6. 81 ( 5) , t he statute t hat defi nes "person authorized

by the patient ," nor a re they exempt under Wi s. Stat.
§ 146 . 83( l b), whereb y the legis la tur e deter mi ned tha t p ublic
defenders need not pay the f e e . The s e lawyers do not fal l i nt o
t he c l ass of per son s listed in § 1 4 6 . 81 ( 5) as t hey are not
oth erwise legally poised to essentially become the decision-
maker f or the pa t ient wh en t he patient cannot legally act on his

or her behalf . Section 1 4 6.8 1 (5) defines "pe r son auth orized by
t he patient " i n part to b e:
[ T] he pa r ent, guardian , or legal custodian of a minor

pat ient , as d efined in s. 4 8 . 02(8) and (11) , the
p erson vested with supervision of the child unde r
s. 938 . 183 or 938 . 34( 4d) , (4h), (4m) , or (4n) , the
guardi a n of a pa t ient ad j udicated i ncompetent in this
state , the personal r epresentative , spou se , or
d omes ti c partner under ch . 770 of a deceased pati ent ,
2
No . 2014AP2236 . akz
any p e rson aut horized i n writ i n g by the patient or a

h eal t h care age nt designated by the patie nt as a
principal under ch. 1 55 if the patient h as been found
to be incapaci t a t ed unde r s . 155.05(2), e x cept as
limi ted by the power of attorney for health car e
instrume n t .
§ 1 46 . 81(5) . Not a b ly absent in this provi sion are lawyer s who
advoca te on a pat ient's behalf in a lawsuit. 1 While it may ma ke
sense to e x empt thes e lawyers from paying f ees , the choice is
not t he cou rt ' s to make ; it is within t he province of the

legislature. I must examine t he text of the statute at issue
using f undamental t ools of statutory constructi on to determine
which of two interpretations of t he phrase " person authorized by
t he patient " was i ntended b y t he legislature ; as put by Aur ora

He a lthca re , Inc., and Healthport Technologies, LLC
( "Hea lthport"), thes e t wo interpretative option s are: (1) "any
person author ized in writing by the pat ient to obtain the
p a t i ent 's health care r ecords"; or (2) " a ny person authorized in
writing by t he patient to consent to the release of the

pati ent ' s heal th care r eco rds." In so d oi ng I l ook to the
surrounding text and examine that text in light of the canons of
construction, not just part of the statutory text, in a vacuum .
I t is . . a solemn obli gation of t he judic iar y to

f a i t h fully give effect to the laws enacted by the
leg islat ure, and to do so r equires a dete r mi nat i o n o f
statutory meaning . Judi cial de f erence to t he po l icy
choices enacted into l aw by t he legis l atur e requi res
t hat sta tutor y interpret a t ion fo cus p rimarily on the
1
Those at t or neys advocat e on behalf of t he c l i ent/patient
and may r eceive authori t y from a cl i ent to , for exampl e, se tt le
a case ; impor tan t l y , h owever, such attorne y s , unlike t h ose
persons i n Wi s . Stat . § 1 4 6. 81 ( 5) , are not standal one decision-
makers wh o act with o r wi t hout t he pa ti ent ' s consent.
3
No. 2014AP2236 . akz
language of the statute . We assume t hat t he

l egislatu re ' s intent is e xpressed in the stat utory
language. . It is the enacted law , not the
u nenacted intent, t h at is bind i ng on the p ub l i c.
There f o r e , the purpose of sta tutor y interpretation is
to determine wha t t he statute means so that it may be
g i ven its fu l l , proper, and intended effect .
State ex rel. Ka la l v . Ci r cuit Court fo r Dane Cty. , 2004 WI 58 ,
'3[44 , 271 Wis . 2d 633 , 68 1 N.W .2d 110 .
'3[43 Given the above charge , I write to examine the

statute s at issue and the court 's r e as on i ng , consider i ng the
disputed statutory text in context and in li ght of f undamental

c a nons of construction . For reasons I will explain, the
i nterpretat i on adopted by the court today fai l s to adhere to
f undamental principles of statutory cons t r uct i on and in fact
renders the overall sta tuto r y scheme v i rtu ally meaningless .

Ul tima tely , I would conclude, like the court of appeals , that
the t ext of the statut e s requires a con clusion tha t Moya 's
personal inj u ry at t o r ney is not a "pe r son author ized by t he
patient" under Wis . Stat . § 146 .83(3f) (b). The l awye r at issue
is not within the definit i on of " p ers on authorized by the
patient " in Wis . Stat. § 146 . 81 (5) nor is he o r she exempt from
payment of f ees unde r § 1 46 . 83(lb) as are other lawyers . Thus,

I must respectfu l ly d iss e nt .
~44 I b e g in by set t ing forth established princ i p l es of

statutor y interpr e t a tion . Sta tutory interpretati on is governed
f irst and foremos t by the pr inc iple that " ( t] he words of a
governing text are of paramou nt con cern , and wha t they convey ,
in their contex t , is wha t t he text means ." Ant oni n Scalia &
4
No . 2014AP2236 . akz
Bryan A. Garner , Rea ding Law: The Interp r e tat ion of Legal Texts
56 (2012 ) (denominating this rule t he " Supremacy- of-Text
Princ ipl e " ) . Judge s s h oul d " determin [ e ] the a pplication of a
gove r ning text to given fac ts on the basis o f how a r e asonable
reader , fully compe t ent in t he l angu age, would have unde r s t ood
t he text a t the t i me it was i ssued. " I d . at 33. This approach

r ecogni zes that "( t ] h e law i s what the l aw says, " Bank One
Chicago , N. A. v. Midwest Ban k & Trus t Co ., 516 U.S. 26 4, 279
(1996) ( Scalia, J ., concurri ng in p art and concur ri ng in t he
j udgment) , and tha t " [a] n interpr e t er who byp asses o r d ownplays
t he t ext become s a l awmaker wi thout obeyi ng the consti tut iona l

rules fo r ma king l aw." Fra nk H. Eas t erbrook, Te xtu a l ism and t h e
Dead Hand , 66 Geo. Was h . L . Rev . 1 11 9 , 1120 (1998 ).
'3[45 Proper s t a tutory i nt e rpre tation r ests on the

fundamen t a l premise that " [n] othi ng but conventions and c ontexts
cau se a symbol or sound to convey a particular i dea ." Scalia &
Garner , supra, at xxvii (e mphases added) .
The e nactment of a l aw is a form o f communica t ion

through language- from the law- giver t o those affe cted
b y the l aw, as wel l as to t hos e who must e nfo rce ,
app l y , or inte rp ret the law. This sort of
communica t i on i s only possible i f the partic ipants
have a set of shared p r actices and conventions t hat
permit t hem to convey meani ng to each other. At the
mo st bas i c lev el , in telli g i b le communi cation requires
that both part i es a ttac h the same meaning to t h e same
sounds or signs . Furthermore, we often need to be
a b le to tel l whi c h of s eve ral possib l e meanings i s
intended by considering the contex t in which a wor d i s
used . Our shar e d p r ac t ices and convent ions als o go
beyon d word meanings. The r u l es o f g r ammar and
syntax, f o r example , repr esent s hared convent i o n s t hat
assist us in decodi ng the communications o f others.
5
No . 201 4AP2236.akz
John F. Manni ng & Matt h ew C. Stephenson, Legis la t i on and
Regulation 222 (20 10)
<Jl 4 6 These twi n p il lars of interpretation, context and

convention, a re ind i spensable to the function ing of t he
judici ary . Convent i on i s sometimes r eal iz ed in par t through the
implementat i on of certa i n " c anons of cons truction," which are
" rules o f thumb t hat that he lp courts determine t he meaning of
l egis l ation . " Connect i c ut Nat ' ! Bank v . Germa in , 503 U.S. 249 ,
2 53 ( 1992 ) . A number of these canons wil l be d i scussed in more
deta il below .
<Jl47 Context , on t he other hand , includes (1) " the pur pose
of t he t ext ," whi ch must be " gather ed only f rom t he t ext i t self ,
consistent l y with the othe r aspects of i ts context"; (2) "a
word's h i stori ca l a ssociations acquired from r ecu rrent patterns
of pas t usage "; and (3) " a word ' s immediate syntactic set t ing-
t hat is, t he words that surround it in a spec ific utterance."
Scalia & Garner , supra, at 33 ( emphasis omitted ) (citing
I . A. Richar ds , Interpretat i on in Teaching vii i (1938)) .
<J[ 48 Appl ication of these p r incip l es-an unrelenting focus
on the meaning of the t ext , discovered t h rough a careful
exa mina tion of context and t h e app l icat ion , where necessary , of
canons of construct i o n- p romotes " certainty , p r edic t abili ~y ,
obj ec t i v i t y, re asonabl eness , rationalit y , and regular it y, which
a re the ob j ec t s of the ski l led int e rpreter ' s q u est. " Id . at 34
(citing Freder i ck J. de S l oovere, Textual Inte r pre tat ion of
Statut es , 1 1 N . Y .U. L .Q. Rev . 538 , 541 (1934)) . I now turn to
6
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No . 2014AP2236 . akz
the iss u e of statut ory interp r etation at t he h ear t of thi s
appea l and , in analyz ing it , employ this methodol ogy .
II
'3[49 Wis cons i n Stat . § 146 . 83(3f) (a) expla i ns that , with
certa in e x ceptions , "i f a pe r son r equests copies of a pat i ent ' s
heal t h car e records, p r ovides informed consent , a nd pays the
app li cable fees under par . (b) , t he heal th care p r ovider sha l l
provi de the person ma king the request copies of the requested
records ." Wis . Stat. § 146 . 83(3f)( a ). Wiscons in Stat.
§ 146 . 83(3f) (b) , in tur n , establishes t he " applicable fees ,"
inc l uding, as r e l evant her e , the fol l ow i ng t wo fees : ( 1) " If the
r equester is not the pat i ent or a person a u thori z ed by t h e

p a tient , for ce r tification of cop i es , a single $8 charge "; and
(2) " If the requester is not the pat i ent or a person aut hor i zed
by the patient , a sing l e r e tri eval fee of $20 f or all copies
r e quested ." Wi s. Stat. § 146 . 83(3f) (b)4. - 5 . (emphases added).
In thi s case , Carol yn Moya ' s ( " Moya " ) personal injury attorney
obtained writ ten cons ent f rom Moya to receive copies of her
heal th car e r ecords . Moya claims her attorney i s therefore a
" pe rson aut h orized by the patient" and thus exempt f r om these
fees .
<][50 " Pe rson authorized by the patient " is de fi ned in Wis.
Stat . § 1 46.81(5) as follows :
[T ] h e par ent , g u a r dian , o r legal c u stodian of a minor

pat ient , as defi ned i n s. 48 . 02(8) and (11), the
person ves ted with supervision of the ch i ld unde r s.
938.183 o r 938.34(4d) , ( 4h ) , (4m) , or (4n) , the
guar dian of a patient adjudi cated incompetent in thi s
state, the persona l r eprese ntative , spouse , or
domest ic partner under ch . 770 of a deceased patient ,
7
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any pe r son author iz ed in writ ing by the patient or a

health care agent designated by the patient as a
p ri ncipal under ch. 1 55 if the patient has been found
to be i ncapaci t a t ed under s. 1 55.05(2) , except as
l imited by the power of attorney for health care
i ns trument. If no spouse or domes tic pa rtner sur vives
a deceased pati ent , " person authorized by the patient"
also means an adult member of the deceased pat i ent's
immediate family , as defined in s . 632 . 895 (1) (d). A
court may appoint a temporary guardi an fo r a p atient
believed incompe ten t t o cons e nt t o t he re l ease of
records under this section as the pe r son authorized by
the patient t o decide upon t he release of r ecords, if
no guardian has been appointed for t he pat i ent .
§ 1 46 . 81 (5) (emphasis added ).
'JI51 Moya and the court r ely on t he emphasized text for
the ir conclusion that Moya ' s at torney fits t he definition of

"person a uthorized by the patient." At t he outset, it shoul d be
noted that it is not clear whether the phrase "any p erson
authorized i n writing b y t he pat ient" in Wis. Stat . § 146.81(5)
is a standalone category or whether it is connected to the
fol l owing phr ase , namely "or a h ea lth care agent des i gnated by
t he pat i ent as a princi pal under ch . 1 55 i f the patient has been

fo und to be i ncapacitated under s. 1 55.05(2) . " § 1 46 . 81(5) .
Healthport contends that t his court need not resolve this issue ,
and I agree . As I wil l demonstrat e, whe t he r read as
constituting its own category or read in conj u nction with the
phra se t hat fol lows it , t he phr ase " any p erson authorized in
wri ting by t he patient" does not include Moya ' s attorney.
'3152 More generally, it is apparent t ha t the mention of

l awye rs is comple te l y absent from thi s statutor y de fin ition and,
instead, the categori es of individuals in the stat ute have the
commonality of thos e peopl e who can l egally act and make
8
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deci sions when the pat i ent cannot; that is not what a pe rsonal
injur y l awyer does. Lawyers are no t l ike t he o t her ca t egori es
of indi victua ls l i sted. Wh i le lawyer s may advocat e on beha l f of
the i r clients, they are ultimately s u bject to thei r clients'
direction. The catego ri es of indi v i ctu als in Wi s. Stat .
§ 1 46.81(5), on t he other hand , are composed o f individuals who
stand in the shoes of a patient and ma k e decis i ons f or the
pa ti ent , but ar e not those who simply advocate fo r a c l ient a t
the client ' s d i rect i on .
III
~53 Also i mportant is a recogni t i on that, as noted by
Heal thport, t he de fi ni t ion of " pe r son aut horized by the pat i ent"
p r ovided in Wis . S ta t . § 146.8 1 (5) does not c l early d efine t he
nature of t he " a u thori[ t y ]" provi ded by the patient to the
pe r son aut hori zed by the pat i ent. The c i rcui t cou r t dete r mined
t ha t , for pur poses of Wis . Sta t . § 146 . 83 ( 3f ) (b) , t he a u thori ty
was t he auth ority to inspect a pat ient ' s heal th car e records.
Moya, 366 Wi s . 2d 541 , ':1[ 4 . The court of appeals concl uded that
the au tho ri ty was t he authority to consent to the release of a
patient ' s heal t h care r ecords. Id ., ~16.
':1[54 Revi ew of Wis. Stat . § 1 46.81(5 ) makes appa r ent t hat
the definition of " person authorized by t he patient " provided
t herein has a commo n focus on ca tegor i es of peopl e wh o are
authorized by l aw t o act as t he patient, not just ac t because
the pat i ent vested them with l i mi ted authori ty to obtain
records. Those i nc l uded in the s t atutory defi n i t i on include
those such as "the parent . of a mino r pat i ent ," f or
9
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i nstance , or " the guardi an of a patient adjudi cated incompetent
in this s tate ," but t he st a tute does not e xpl i c i t ly describe
wha t t ype of authori ty thes e p e ople possess. § 146 . 81(5) . Th e
kind o f a u t hority vested b y law in these peop l e is far different
than the k i nd of obl igat i ons a lawyer t a ke s on in r epresenting a
per son in a l awsui t . These p eople l i sted are those who could
sign a r elease t ha t would authoriz e the lawyer to get t he
records. The lawyer, unlike those l i sted i n§ 146 . 81(5) , could
not , fo r e xample , sign the form on behal f of the patient as al l
t hese indi viduals could do.
<][55 These observa t ions ar e relev ant to t he p l ain meaning
of " any person authorized in writing by the patient " in Wis.
Sta t. § 146 . 81(5). A person who state s "I have been a u t horized
in wri t ing " has sa i d nothing abou t what she has b een authorized
to do. For e x a mple , a person wh o has been a utho riz ed in writ ing
to speak on a pat ient ' s behal f is technically a " person
authoriz ed in wri t ing by the pa t ient," see§ 146 . 81(5) , b ut no
one would argue that this type of pe r son would ful f il l t he
defi n i tion of " person authorized by the pat i ent" i n Wis . Stat .
§ 1 4 6. 83 (3f) (b) . Those listed in the sta t ute , h owever , have i n
common , for examp le , the authority vested i n t h e m by law . In
sum, examina ti on of the phr ase " any person author ized in writing
by the patient " i n§ 14 6 . 81(5) in isolation is not suf fi c i ent to
decide thi s case.
<][56 The court de f ines t he na ture of t h e authori t y in Wis .
Stat . § 146 .81(5) different l y d epending on i n which portion of
10
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chapter 146 tha t phrase is used . 2 So because , i n the context o f

Wis. Stat. § 146. 83(3f) , the " person [potential l y ] authorized by
t he pat i e nt " i s " request [ ing ] copies o f a patient's heal t h ca r e
records,"§ 14 6 . 83(3f) (a) , the definition of " person au t horized
by t he pat ient " i n that portion of the s t a t utes, i n t he cour t 's

v i ew, is "person authorized by t he pat i ent to obtain t he
pat i ent ' s healthcare records " (as l ong as , pursuant to
§ 1 46. 81 (5) , tha t auth or i zati on is wri t ten authorizat ion) . But
any person who obta i ns r ecords this way wou l d need wri tten
authori zati on .
j57 In other words , the cou rt simply conc l ude s that

because Moya ' s a t torney was "authorized in wr iting" to receive
copies of Moya 's hea lth care r ecords, he is a "[ p ] erson
authori zed by the patient" as defi ned in Wi s. Stat. § 1 46 . 81 (5) ,
which definition appl i es to the fee port ion of t he statutory

scheme , Wis. Stat. § 146.83(3f) (b). See § 1 46 . 81. That
int e rpretation possesses the b ene f it o f be i ng uncomplicated, but
tha t does not mean it is correct. Th e cour t ' s reading fa ils t o
a c count for a number of importan t conside r ations-namel y ,
significant clues p r ovided by investigation of the s t a t utory
2
Typical l y, the " [ p J r esumption of cons i stent usage" canon
wou ld i nstruct tha t "(a] word o r phrase is presumed t o bear t he
same meaning t h r oughout a text . " Antonin Scali a & Bryan A.
Garne r, Reading Law: The Int erpreta tion of Legal Texts 170
(2012) . I n the cour t ' s d e fense, howeve r , it may not be
necessa ril y i n viol a ti on of t ha t c anon because the na t ure of the
authori t y , whi l e changing, cha nges to a t t end t o the p u rpose of
t he spe c ific s t a t ute.
11
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context and t he a ppl ication of canons of cons tr ucti on-which

counsel a d ifferent reading of t he s tatute .
<[ 58 Mor e speci ficall y, t he cou rt's conclus ion fa l ls p rey
t o a criticism di r ected at Moya by Heal t hpor t :
Although [Moya] repeatedly u rges this Cou rt to f ol l ow

the "plain l anguage " or " p lain me aning" of the
statutory words , she fails to provi d e a reason why he r
p r oposed interpre tati on fol l ows f r om thos e words .
I nste ad, [Moya ] simp ly assumes that the l egisla tur e
meant to say " any p erson author ized in writing by the
patient to obtain that p a t i e nt ' s heal th care records ."
A plain language argument t h at simply assumes t h e
addition of a c r itical c l ause is not a plain l anguage
argument a t all.
<[59 The trut h of the ma tter i s t ha t the s t atutory phras e
" any p e rson authorized i n wr iting by the patient," v i ewed alone ,

simply does not provide enough i nformat i on f or the cour t to
r each a conclu sion in t h is case . But statutory i nterpretat i on

re quires mor e than s i mply l ooking a t a set of words in total
isolati on . The court must look t o someth ing more-the context
of t he p h rase and appl icable cano ns o f constructions-to reach

the corre ct answer .
CJI6 0 Before d iscuss ing how these tool s h elp establish t h e
pl ai n me aning of this p h rase in this s tatut e , I exp l a i n how
t hese t oo l s immedi a t e l y demo nstrate a number of signi f i cant

defi c its in the court ' s appr oach. First , the phrase " p erson
authorized b y t he patient " must requ ire mor e i n the context o f
Wis . Stat. § 146.83(3 f ) t h an the court says it does bec ause,

with a f ew exceptions, "a p erson reques t[ing ] copies of a
pati e nt ' s hea l th care records" u nder that p rovis i on mu s t
add itional l y " provide[ ] informed consent" i n orde r t o ob t ain t h e
12
No. 2014AP2236 . akz
r ecords. § 146 . 83 (3 f ) (a). Informed consent under the statute

"means wr it ten consent to t he d i sclosure of informat i on f r om
pat i ent hea lth care records to an indi vidu al , agency , or

o rganization that inc ludes " speci f ied pieces of informati on such
as t he patient's name and t he signatur e of t he pat i ent or the

person authori zed by the pat i ent. Wis. St a t . § 1 46.8 1 (2) .
Th erefore , under the court ' s i nterpretat i on, nearly every person
who obtains health care records under § 1 46.83(3f) wi ll , by

nature of the i nformed consent they mu s t provide, automatically
be a "person authori zed by the pa t ient " and thus, virtually no

one will ever pay certification or re tri eval fees as called fo r
by the stat ute.
161 If the court were correct and all one needed to become
a "person author ized by the patient " was informed consent, then
t here would be no need for a statutory d efi n i tion of "person
authorized by the pat i ent ." A person possessing informed
consent and a "pers on authorized by the patient" must therefore

be very differ ent i ndi v i ctuals possessing different degrees of
authority. See, e . g., Pawlowski v . Am. Fami l y Mu t . Ins. Co.,
2009 WI 1 05 , 1 22 , 322 Wi s . 2d 21, 777 N.W . 2d 67 ("As a basic

rul e of statutor y construction, we endeavor to give each
statut ory word independent meaning so that no word i s redundant
or superflu ous. When the l egi s l a ture chooses to use two

di f ferent words , we genera l ly consider each separatel y and
presume that d i fferen t words have different meanings ." ) . The
reason that both informed consent and separate aut hor i za ti on are
r equired in thi s statutory scheme is because t he individuals
13
No . 2014AP2236.akz
exempted f r om the sta tutor y fees at i ssue are e ither patients or

those who are essential ly the e quival e nts of pa t ient s. Th e
legis l ature defined "pe r son aut horized by the patient" t o mean
individuals that could actua l ly s t ep in and make decisions fo r

the patie n t. In contrast , lawyers are advocates but t hey do not
step i n and become the decision-maker ; in fact, it i s uneth i cal
f or t hem to do so.
<][62 The l egislature does not enac t a fee statute to
collec t no fees . Wh ile t h i s seems obvious , I need not look to
l egis l ative hist ory or some unknown possib l e intent ; I need onl y
l ook at the words of the s t atute. And this is wh ere cont e xt and
canons of cons truction provide guidance. It is a " well-
e stabl ished can on[ ] of statutory construction'' that " (s ] tatutory

i nterpretations t hat render p rovisions meani ngless shoul d be
avoided ." Beldi ng v . Demoulin, 2014 WI 8, <][1 7 , 352 Wis. 2d 359 ,

8 43 N.W.2d 373; see also, e . g., United States v . Tohono O' Odham
Nati on, 563 U.S . 307 , 31 5 (201 1 ) ( " Courts s h ould not rende r
s tatutes nugatory t h r ough construct ion." ) ; Loui svi lle Wa t er Co.

v. Clark, 1 43 U.S. 1, 12 ( 1 8 92) ( "Any other interpretation of
t he act . . woul d render it inoperative for the purposes f o r
wh ich , mani festly, it was enacted ." ) ; Kalal, 27 1 Wis. 2d 633,
<][ 46 ( "Statuto r y l anguage is read where possib l e to give
r easona b le effect to every word , in order to avoid
surplus age.") . The cou rt's approach v i rtually guts the
14
No. 2014AP2236.akz
possibility of co l lect i ng fees and certainly contravenes fai rly

basic canons of construc tion. 3
':1163 Another f law i n t he court ' s reading of the relevant
statutes is that the language of Wi s . St at. § 146.81 (5) does not
mention lawyers at al l but lawyers are exemp ted in other

sections. " Under t h e doctrine of e xpressio unius est excl u s i o
alteri us, ' the express mention of one matter excludes other
similar matters [that are] not me nti oned.'" FAS , LLC v . Town of
Bass Lake, 2 0 07 WI 73, ':1127, 301 Wis. 2d 321 , 733 N. W. 2d 287
(al t erat i on in origina l) ( quoting Perra v. Menomonee Mut . Ins.
Co ., 2000 WI App 215 , ':111 2 , 239 Wis. 2d 26 , 619 N.W . 2d 123). The
legi slature was f ully capable of addi ng lawyers to t he
3
It is true that Wis . Stat. § 14 6 . 82(2) contains a list of
ent i ties that may obtain heal th care records wi t hout informed
consent unde r certain circumstances, such as (generally
speaking) emergency medical services personnel assisting a
pat i ent, distr ict at to rneys prosecuting alleged child abuse , and
cou r ts conduc t i ng termination of par enta l rights proceedings .
See § 146 . 82(2) (a)2. , 11.-l l m. I do not f i nd compel l ing t he
argument that the certi ficatio n and r etrieval f ees in Wis. Stat .
§ 1 46.83(3f) (b)4.-5. are reserved for this specialized subse t of
requester s . If the leg i slature had intended such a result , it
cou ld have provided f or i t much more clearly .
Furth e r, it may well be that these entities share common

characteris tics of which the court i s no t, at this t ime, fully
aware . For ins tance, many of t he entiti es l isted i n thi s group
seem to possess a publ ic interes t compon ent , such t hat a fee for
hea lth care records would ultimately be transfe rred to t he
taxpayer. Other entities in t his group would seemi ngly includ e
hea l t h care providers themselves using he al th care records f or
int ernal matters. See , e.g., Wi s. Stat . § 1 46 . 82 (2) (a)3 .
(exception p r ovided " [ t ] o the extent ~hat the records are needed
f or b i lli n g, collec tion or payment of claims. " ).
15
No . 20 14AP2236.akz
defini tion of " per son authori ze d by the patient ," but i t did not
do so .
<][64 A third problem with the court ' s interpre tation s t ems
from the langua ge of the le gisl a ture ' s 2 0 14 enactme n t of 2013
Wisconsin Act 342 , which in turn created Wis . Stat.

§ 146 . 83( 1b) . I mportantly, this statute f u r ther define d those
wh o are exempt from pa ymen t. Section§ 1 46 . 83 ( 1b) provides:
No t wi thstanding s. 1 4 6 . 81 ( 5) , in thi s section, a

" pe rson authoriz ed by t he p a tient " includes an
attorney appointed to represent the pati ent under s .
9 77 . 08 [a s e c t ion in the chapt er pertaining to the
Sta te Publ ic Defende r ] i f t h at attorney has writ ten
i nforme d consent from t he patient to view and obtain
copi e s of t he r ecords.
§ 146.83(lb) ( emphas is added) . " No twi thstanding " the defi nit i on
of "person autho riz ed by the patient " means "in spi te of " the
d e f init i o n of "person author ized by t he patient. "
Notwit hstanding , Black ' s Law Dicti onary 123 1 ( 1 0th ed . 2014)
(emphasis added) It would be st r ange indeed fo r t he
le g i slatur e to h ave us ed t h e word " notwithstanding " if , as is
suggested by the court ' s opin i on , these attorneys already me t
t he d efinit ion of "person authoriz ed by the pat ient " in Wis.
Sta t. § 146.81(5) prior to the enactment of § 1 4 6 . 83(lb) . Put
di fferent l y , t he legislat u r e's recent amendmen t s tro n gly
indicates t hat individuals like Moya 's attorney are not i ncluded
in the defini tion of "pe rs on authori zed by the patient. " If
l awyers who r eceived a utho rization in wri ting were included in
§ 146 . 8 1( 5) , § 1 4 6 .8 3(1b) would be surplusage and complete l y
unnecessary .
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'JI 65 The a mendment in Wis. Sta t . § 1 46.83( 1 b) provides
simi lar guidance when viewed in light of any of a number of
canons of construction. One such canon has a l ready been
re f erenced: "S t a t utory l anguage is r ead wh ere poss i ble to give
reasonabl e effect t o every wor d , in orde r t o a vo i d surplus age. "
Kala l , 271 Wis. 2d 633, 'l! 4 6. As Healthport points out , " [i]f
the defi ni t i on of ' person auth o ri zed by t he pat ient' alre a dy
i ncluded attor neys wi t h an i nformed consent , the new sec tion
1 46 . 83(1b) woul d be whol l y superf l uous. " Inde ed it would.
'1[66 Again , " [u) nder the doctr ine of expr ess i o unius est
exclus i o al terius, ' the express mention of one matte r excl u des
other similar matt ers [ that are ] not ment i oned . '" FAS, LLC , 30 1
Wis . 2d 32 1, 'l!27 (alte r at i on in origina l ) ( q u oting Pe r ra , 239
Wi s. 2d 26 , '1!12). That is, the l egis l atu r e obviously cou ld have
e x panded t he reach of Wis . Stat . § 1 46.83( 1b) to include
personal i nj u ry a ttorneys , but it did not do so . Simi la rl y,
" [ n ] othing i s to be added t o wh at t he t ext s t ates o r reasonabl y
i mplies (cas u s omissus pro omi sso habendus est). That is , a
ma t te r not covered is to be treated as n ot covered . " Scal i a &
Garner, supra , at 93 (describing th i s as the " Omitt ed-Case
Canon " ) . Unde r t h is p r inciple, a j u dge should not , among o t her
things " e l abor ate unprovi ded-for exceptions to a text ."
see also id . (" [I ] f the Congress [h ad] intended to provide
addit i onal e xceptions , it woul d have done so in clear language. "
(alte r at i ons in origi na l ) ( quoting Pet t eys v. But ler, 367 F . 2d
528 , 538 ( 8 t h Cir . 1966) (Blackmun , J ., d i ssenting)) ) . Th i s is
exa ctly what the court may be read to do in con clu d i ng that
17
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No . 2014AP2236.akz
Moya ' s at t o r ney is exempt from the fees at i ssue . This court
s h oul d not be a c t ing wh ere the legisla t ure has decl i ned to do
so .
'Il67 Accordi ngl y , t he court 's int erpretat i on of Wi s . Stat .
§ 14 6 . 83 ( 3f) (b) possesses substant i al f laws , and I cannot agree
with it . Fortunately, it is not the only interpretation
pres ent ed in t his case . Agai n, it is important to recogni z e
that Wis . Sta t. § 146.81(5 ) does not clearly define the natur e
of the " auth ori [ ty]" p r ovi ded by the pati ent to the person
chosen by the p a tient; the s t a tu te instead lists cat egories of
i nd ividual s. In o r der to det e r mine t he n a ture of thi s
authori t y, then , it is aga i n be n efi cia l to l o ok t o context and
to apply recogniz ed canons of cons t ruct i o n .
168 Two re lated canons of construction , noscitur a sociis
and e j usdem generis , are particularly helpf ul h e r e. Pu r suant to
the nosci tur a sociis canon of constru cti on , " [a ] n uncl ear
statut o r y t erm should b e understood in the same sense as t he
words immediately surrounding or coupl ed with it. " S tate v.
Qui ntana , 2 008 WI 33 , 'Il35, 308 Wis . 2d 615 , 748 N.W . 2d 447
( quot ing Wis. Cit i zens Concerned fo r Cranes & Doves v. DNR,
20 04 WI 40 , '1[40 , 270 Wi s . 2d 318 , 677 N . W. 2d 612) . Tha t is , it
is r easonabl e to a sce rta in the me aning of the phras e "person
author ized by t he pat ient " by ana l yz ing t he phrase in light of
the surrou n d i ng cat egories e nume ra ted in the de fin ition . See
Moya , 366 Wi s . 2d 541 , 'Il l 2; see a l so Kalal , 271 Wis . 2d 633 , 'Il 4 6
( " Context is important t o meaning ." ) .
18
No . 2 01 4AP2236 . a k z
<[69 As expl ai ned, none of t he enumerated categories in
Wi s. St a t . § 146.8 1 (5) consists of att o rneys . Fu rth e r , the
phrase " any person authori zed in wri t i ng by the pa t ient " is
p l aced in the mi ddle of the l i st r athe r than at its end ;
therefore, it does n o t seem to be an expans i on of t he catego ri es
p r evi ous l y l i sted to new ca t egori es of people, nor does i t seem
to be an extens i on of the previou sly listed categor i es to
include a hos t of new categories. See , e . g ., State v. Gi vens ,
28 Wi s. 2d 109 , 1 15 , 1 3 5 N.W.2d 780 ( 1 965) ( " Wh en t he statute ,
aft e r t he specific enumerat i ons, in a ' cat chall ' clause

proscribes 'o t herwise d i sor derly conduc t ' which tends to
' provoke a disturbance, ' thi s must mean conduct o f a t ype n ot
previ ously enume r ated but simi lar t h ere t o in having a t enden cy
t o d i srupt good order and to provoke a disturbance. " ).
<[70 In fact, if I consult the n oscit u r a soc i i s canon o f
construc t ion , it depends upon whe t her the enume rated persons in
Wi s. Stat . § 1 46.8 1 (5) possess a " s i mi lar meaning. " Qui ntana ,
308 Wis. 2d 6 1 5, 135 . If t he various catego ries are unrelated,
t h en one would p r esume t ha t the indi vidual categor i es should b e
int e r pret ed broadly. See id . Converse l y, if t he variou s
cat egor ies a r e r e l ated , t hen the "aut ho ri [ty] " p r ovided by t he
p a tient to the per son cho sen by the pat ient in § 1 4 6 . 81(5)
s h ou l d be understood i n light of t he charact er i stics shared by
e ach catego r y . See id. As was previ ously di s cussed , t he
categories of individual s l is t ed have in common t he fac t that
t h e y become d e c i sio n-make rs fo r t he pat i ent . Thus, we f u rthe r
19
No. 2014AP2236.akz
conclude tha t the phr ase "per son autho ri zed by t he pati ent" is
not to be constr u ed as expans i ve .
'lI7 1 Addi tionally, a related canon of construction , ejusdem

gene ri s , "instructs that when general words f o ll ow specifi c
words in the statutory text , t he gen era l words should be
const r ued in light of t he specific words l isted" such t hat " the
general word o r phrase will encompass only things of the same
type as t h ose speci f ic words lis t ed ." Id ., '3[27 (c i t i ng Adams
Outdoor Advert., Ltd . v . City of Madi son , 2006 WI 10 4, '3[62 n.1 5 ,
294 Wis. 2d 441, 717 N.W.2d 803). Bu t if " [t] he spec i f ic t erms
listed i n t he statute h ave no common fea t u r e or class from which
one could a scertain an i ntention to restrict the meaning of the
gene r al t erm," then " the general terms shou ld be inte r pre t ed
broadl y to g ive e ff ect to the l egis lature 's intent ." Id ., 'lI'lI26,
28, 3 1-3 2; see also Scalia & Garner , supra, at 101 (unde r t he
"Genera l -Terms Canon, " "[ g ] eneral t erms are t o be given the ir
general meaning (gene r a l ia v erba sunt generaliter
intelligenda ) ," so long as t here is no "indi cati on to the
con t rary " ) . So aga i n , because the categories of indi victua l s
have in common the fa ct t ha t they become decision-makers for the
patient, the words are no t expansive .
'lI72 Consequently, it is i mpor tant to asce r t ain whe t her

t h ere are similari t i es be t ween the cat egori es of individuals
lis ted in Wis . Stat . § 146 . 81(5) . If t here a r e simi lari t ies,
t his would i ndicat e that the " authori [ tyJ " grant ed in
§ 14 6 . 8 1 (5) should be inter p r eted more narrowly and more
exc l usivel y; if there are no similarities, t hen this
20
No. 201 4AP2236 . akz
" author i[ ty] " should be int erpreted more broadly and less
exclusively .
<J[73 Wisconsin Stat . § 1 46 . 8 1 (5) defi n e s "[ p ) e r son
a ut hori zed by the pa t ient " to i ncl ude i ndividuals acting on
behalf of : (1) mi nor pat i ents ; (2) pa t ients who have been
a djudi cat ed incompetent; ( 3) deceas e d patients ; and ( 4)
incapacitated patient s . § 1 46 . 81 (5) . One mi ght argue t hat the
legis l ature envi sioned a certain commonality a mong t h ese
categories of i ndividual s. And i ndeed , the court of appe al s ,
compa ri ng Moya and her per sonal in j ury a ttorney t o t hese o t her
pa irs of i ndi victuals , interpreted "aut horized " in t he phr ase
" person authori zed by t h e patient " to mean " havi ng t h e power to
consent to t h e r elease of t he pat i ent ' s recor ds, " r a the r than
merely the powe r to r eceive t hose recor ds. Moy a , 366
Wis . 2d 5 41 , '3!16 (emph as i s a dded) ; s ee al so § 14 6 . 81(5) ( "A
court may appoint a t emporary g u a r dian for a pat i ent be l ieved
i ncompetent to consent to the r e l ease of records under this
section as the person authori zed by the pa t ient to decide upon
t he r elease of r eco r ds, if no guar dian has been appoint ed fo r
the pat ient ." (emphasis a dded)). The cour t of appeals conc l uded
t ha t adopt i on of Maya ' s a r gument would v i olate t he manifes t
pur pose of the relevant statutes , expandi ng the def i nition o f
"person authorized by the pa ti ent " beyond the " very speci fi c
l ist of i n divi duals " contempl ated by t h e legi s l atur e . See Moya ,
366 Wi s. 2d 541 , <J[ l 2 .
'lI 7 4 Th e i nterpr etation of t he court of a ppeals is
r eason able. It be t ter comports with t he o t her enume r ated
21
Case 2019CV000110 Document 3 Filed 09- 18-2019 Page 43 or 46
No . 2014AP2236 . akz
categories o f persons in Wis. Sta t. § 1 4 6 . 81 ( 5) . It possesses
none of the major defects of the cou rt 's inte r pretation which I
i dent ifi ed above. And i t i s supported by t he stat utory cont ext
and by canons of construction . And th is h olds true whether " any
person authorized in writing by the pa ti ent " is read as a
standalone category or together with the f ol l owing clause . If
read as a standalone category, " any pe r son author ized in writing
by the patient " woul d c lear ly not be intended as a broad ,
"ca tch-all " group, because i t would n ot fall at t he end of the
l is t of enumerated categories ; and if read togethe r wi th t he
fo l lowi ng clause ( "o r a health care agent designated by t he
pat i ent as a p r i n cipal under ch . 155 if the patient has been
found to be incapacitated under s. 1 55 . 05(2) ," § 1 46.8 1(5)) ,
then " any pers on author iz ed in writing by the patient " woul d
share the characteri s t ics of the othe r enumerated categories and
would not be intended to i nclude attorneys. Th ese canons
cer tainly point strongly in one direction : agai nst the readi ng
adopted by the cou rt .
175 The cour t does not adequate ly address t he r eading
d i cta ted by a pp lication of t he i nterpretat ive methodology
discussed above ; as a result , it s reason i ng is unpersuasive . It
also does not expl ain why Wis. St at . § 1 4 6 . 83( 1b) would be
necessar y to exempt publ ic defenders from the payment of these
fees because p ubl ic defenders, as vi r tual l y al l others , would
need wri t ten a uthorization to obta i n the patien t' s r e cor ds in
the first i nstance . The court adopts a more expansive
interp retation , but seems to base it s interpretation on language
22
No . 2 01 4AP2236 .akz
that does no t have s u ppor t in common tools of construct ion. In
my v i e w, lit tle or not h i ng in the statutory text support s t he

court ' s expansive view.
<J[76 On bal ance , I mus t conclu de t ha t the interpr etation
adopted by t h e cour t today is unli kely t o be t h e cor rect answer.
If the statute at issu e i s r ea l ly as broad as the court says it

is, the challe nged f ee requi r ements are rende r ed l arge l y
meaningless . I cannot accep t t ha t a plain meaning here was
intended to exempt virt ual ly a l l who obtain r ecords from payment

of the f ees set for t h .
')[77 Th e clear purpose of t he statute , as
"gathered from t he t ext itself , " is to charge certai n
indivi duals f ees . Scalia & Garner, supra , at 3 3 . Ver y simply
stated , s i nce nearly anyone who wishes to rec e i ve a pati e nt's
records needs tha t patient's authorization and no such

authori zed p erson wou ld e v er need to pay t he applicable fee ,
virtual ly no fe e s would be paid unde r t his statute . It i s not
as though an attorne y, a ppropriately a utho r i zed, could never fit

t h e definition of " person authorized by the pat i ent." Bu t every
attorne y does not fit t ha t definition , and an examinat ion of the
tex t reveals tha t Moya 's a t torney does not fit t hat de fini t i on.
<J[ 78 Finally , given the competing interpr etative
p ossibi liti es here , a point about judicial r estraint is

appr opriate. Ev en if it int u i t i vely makes sense t hat personal
injury lawyers should not h ave to pay f ees to r eceive their
client s ' medical r ecords , if I a m incorrect , t he l egislature
could easi l y amend. the statute as it did with Wis. Stat .
23
Case 2019CVOOO 11 0 Document 3 Filed 09-18-2019 Page 45 or 46
No . 2014AP2236 . akz
§ 1 46 . 83(lb) t he r eby exc luding the public defenders . The

l egis la t ive " fi x, " i f the court is incorre c t, requires a virtual
rewrite of these f ee sta tutes .
IV
~79 I nterpreta ti on of the statutor y text leads me to
conclude, like the court o f a ppeals , tha t Moya's p e rsonal injury

a tt o r ney is no t a "person a uthoriz e d by the patient " u nder Wi s.
Stat . § 146 . 83(3f) (b). Regardl ess, it would be well worth t he
legislatu r e ' s t i me for it to clarify t h ese statutes so as to
provide guidance to the public , to l awyers, and to the court s .
I n the abs ence of s uch guidance , however, I must r espectful l y

dissent .
~8 0 For t he for egoing reasons , I respectful ly dissent .
24
No . 2 0 14AP22 3 6 . a kz

Mary Hills' Summon and Class-Action Complaint

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Case: 3:19-cv-00907-wmc Document #: 1-3 Filed: 11/04/19 Page 1 of 67

Case: 3:19-cv-00907-wmc Document #: 1-3 Filed: 11/04/19 Page 2 of 67

SUPREME COURT OF WISCONSIN Clerk of Circuit Court

REV I EW OF A DECISION OF THE COU RT OF APPEALS

OPINION F ILED : May 4 , 2017

D I SSENTED : ZIEGLER , J. dissents ( op i nion f i led) .

For the d efendants - appellant s, there was a brief by John

STATE OF WISCONSIN IN SUPREME COURT

Aurora Healthcare, Inc . and Healthport MAY 4, 2017

REVIEW of a d ecision of t h e Cour t of Appea l s. Reversed and

'Il MI CHAEL J. GABLEMAN , J . This is a review of a

published d ecision of t he cou rt of appeals that reversed the

Mi l waukee Co u nt y c i rcui t court' s 1 d enial of Aurora Healthcare,

judgment . Moya v . Aurora He althcare , Inc . , 2016 WI App 5 , 366

Wis . 2d 5 41, 87 4 N. W.2d 336.

phr ase " p erson authori zed by t he patient " in Wis . St at .

h ealth car e r ecords . More particu larly, we are asked to

determine whe t her an at t orney wh ose client authorized him v i a a

an a t tor ney autho ri zed by h is or her c l ient i n wri t i ng v ia a

a "p ers on authori zed by t he pat i ent" under Wi s. Stat.

§ 1 4 6 . 83 ( 3f) (b) 4 . -5. and i s the r e fore exemp t f rom ce rt if i ca t i on

charges and ret r ieva l f ees unde r t hese subdivisions .

'3[3 We beg i n with a brie f f actua l background and

St at. § 14 6 . 83(3f) (b)4 . -5 . and is t herefore exempt from t he

I . FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The St atutes Gove r ning Access to Health Ca r e Reco r ds

'314 Access to pat i ent health car e r ecords is gove r ned by

cop i es of a pa t ient ' s heal th care recor ds , provides i n f ormed

§ 1 46. 83 (3f) (a) .

'IS Pu rsuant to para . (b) , health care provi der s may

(b) Except as provi ded in s ub. (lf) , a heal t h

1 . For p a per copies: $1 per page for the first

2. For microfi c he or microfilm copi es , $1 . 50 p er

3 . For a print of an X-ray , $10 per i mage .

4. If t he r equester is not the pa t ient o r a

5 . If t he requester is not the pa tient o r a

6. Actua l shipping costs and any applicable

<f[6 I ns t ead , a " pe r son aut horiz ed by the pati e n t " is

t he pa r ent , gu a r d ian , or legal c u stodi an of a minor

the pat i ent to decide upon t h e release of records , if

a p erson must fa l l i nto only one of the above categories of

category on which Moya relies i n arguing tha t her attorney is a

B. Moya ' s Cl ass Action Lawsui t

~7 Th is cas e comes to us by way of a class acti on lawsu i t

the certification char ge and retrieva l fee , despite the fact

'1[8 Moya authori zed her attorney , Robert We l cenbach, to

'1!9 Atty. Welcenbach subsequently submitted re que sts for

<J[ lO At the t i me Heal thpor t invoiced Atty. Welce nbach , he

paid t he costs, and he did no t specifical l y dispute them .

However , he had on mu ltip le p r evious occasions disputed the

Contrary to the assertion made by the dissent , t he fact

111 In response to Healthport 's imposit i on of the

certifica tion charges and retrieval fees , Moya f i l ed this c l ass

§ 1 46.83(3f) (b)4 .-5. when it imposed the certificati on charges

and r etrieval fees because her attorney i s a " pe r son authorized

certification charges and retri eval fees.

1 12 Healthport moved to dismiss Maya's comp l aint for

fa i lure to state a claim, and the circu i t court7 denied

Heal thport ' s mot i on . Healthport fil ed an answer , and the

part ie s underwent limited discove ry. After the limited

d i scovery, Heal thport filed a motion for summa ry judgment asking

t he c i rcuit court t o dismiss Moya ' s cla i m with prejudic e. The

Healthport ' s motion .